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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Art. 9. Chapter I : General provisions
-- ACTIVITIES OF THE INTERNATIONAL
COMMITTEE OF THE RED CROSS
This provision reproduces the former Article 85
of the 1929 Prisoners of War Convention in a more complete and general form applicable to all four 1949 Conventions. Its origin goes back to the activities of the International Committee of the Red Cross during the First World War. During the first days of hostilities in 1914, the International Committee, following earlier precedents, opened an Agency which, by collecting and centralizing information on prisoners of war, helped to trace those who were missing and reestablished contact between the prisoners and their families. In addition, taking advantage of the fact that the Hague Regulations authorized approved relief societies to carry out their charitable activities, the Agency sent delegates to visit internment camps. These visits did not only enable it to ascertain the needs of the [p.104] prisoners of war and bring them relief and moral comfort, but also served as a means of checking the application of the Hague Regulations of 1907 (1). Incomplete as it was, this spontaneous and gratuitious supervision often helped to bring about considerable improvements.
Therefore, when a new Convention relative to the treatment of prisoners of war was drawn up, care was taken to provide the International Committee of the Red Cross with a legal basis for renewing activities which had proved of such value. The 1929 Convention did not do this by means of mandatory provisions, but simply by recognizing, in two different places, the right of the International Committee to take action. Article 79
provided for the setting up of a "Central Agency of information regarding prisoners of war", the organization of which could be proposed to the Powers concerned by the International Committee of the Red Cross if it considered it necessary. In order that this should not appear to exhaust all possibilities of intervention by the International Committee, the final paragraph of the above Article laid down that the provisions should not be interpreted as restricting the humanitarian work of the International Committee of the Red Cross. (2)
In the matter of the organization of supervision, the 1929 Conference limited itself, as we have seen above, (3) to recognizing the right of the Protecting Power to visit prisoners of war, and to granting it facilities for exercising that right. But in order to show that such right did not exclude either a repetition of the unofficial supervision which the International Committee had exercised during the 1914-1918 War or any other humanitarian action, it stipulated in Article 88
that the "foregoing provisions" -- that is to say Articles 86
dealing with the organization of supervision -- did not constitute any obstacle to the humanitarian work which the International Committee of the Red Cross might perform for the protection of prisoners of war with the consent of the belligerents concerned.
These terms of reference were wide from one point of view and restricted from another. Wide because they did not specify the tasks to be carried out by the International Committee of the Red Cross, and so did not limit them. Restricted because this vagueness, and the fact that the provisions were not mandatory in character, meant that the [p.105] International Committee of the Red Cross could not refer to any order or specific mission in order to impose the action it wished to take upon the Parties concerned.
Reflection showed, however, that that was all that was necessary. In the first place, it would at that time have been almost inconceivable to entrust official duties to an organization which, far from being an international juridical institution of an intergovernmental or supragovernmental character, was in law nothing more than a private association of a number of Swiss citizens. But the mere fact of referring to it in a Convention gave the International Committee of the Red Cross added authority and was not simply a hommage paid to its past activities.
In the second place, had specific duties been entrusted to the International Committee of the Red Cross and its activities imposed on the belligerent parties, the latter might have been tempted to shift to the Committee the responsibility for carrying out their own obligations.
Finally, the wording adopted did not bind the International Committee of the Red Cross in any way and so did not affect its independence.
It was on this fragile basis that the International Committee of the Red Cross undertook and successfully carried out a considerable amount of work during the Second World War. There is no point in describing that work here, even briefly, the information being available in the Report submitted by the International Committee of the Red Cross to the XVIIth International Conference at Stockholm in 1948. (4) A few figures from the Report will be enough:
Central Prisoners of War Agency: approximately 40,000,000 cards;
Number of visits to prisoner of war camps: 11,000;
Relief for prisoners of war transported by the International
Committee of the Red Cross and distributed in the camps: 450,000 tons
(equivalent to 90,000,000 parcels of 5 kilogrammes each).
And above all let us remember that this work -- with all that it involved in the way of initiative, effort, and negotiations with the belligerent Powers, even including the formation of a fleet to carry the relief, through a strict blockade, from one side of the front to the other -- [p.106] was only possible, with rare exceptions, in places where the 1929 Prisoners of War Convention was in force (5). Thus, at a time when certain prisoner of war camps were being visited daily by its delegates and received whole trainloads of relief stores, access to other camps or sections of camps was barred to the International Committee of the Red Cross, and it could not secure the entry into them of a single gramme of food, owing to the fact that those camps or sections of camps contained prisoners of war whose countries of origin were not bound by the Conventions in their relations with the Detaining Power. (6)
Although it was only in the 1929 Prisoners of War Convention that its right of initiative was recognized, the International Committee of the Red Cross tried to intervene on behalf of other categories of war victims. There again, its unceasing efforts on behalf of those detained in concentration camps met with constant refusal and even hostility, (7) although it was successful, in certain cases, in protecting thousands of human beings and, alone or in conjunction with others, was able to carry out some major projects in connection, more particularly, with the supply of foodstuffs for civilian populations.
All this is a striking illustration of the value of Article 88
of the 1929 Prisoners of War Convention, and it was natural that the idea should be taken up again in the four revised or new draft Conventions. The 1947 Conference of Government Experts having noted that the Article did not cover the activities of the International Committee of the Red Cross in the field of relief, the provision was expanded to read as follows in the draft Convention:
"The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross may undertake for the protection of wounded and sick, medical personnel and chaplains, and ' for their relief, ' subject to the consent of the Parties to the conflict concerned. (8)"
[p.107] At the Diplomatic Conference the discussion on this Provision was very short. (9) Nobody contested the principle involved. The draft was, on the contrary, extended to include a reference to "any other impartial humanitarian organization" after the words "the International Committee of the Red Cross". This was for fear that a reference to the international Committee alone might close the door to other organizations capable of contributing to the protection of war victims. There was ample justification for such a fear, and the Article, with the above addition, was accordingly adopted in Plenary Assembly without discussion or opposition.
COMMENTS ON THE ARTICLE
As we have seen above (10), in the 1929 Prisoner of War Convention the right of initiative of the International Committee of the Red Cross was only reserved in connection with certain specific activities -- those referred to in Articles 79
(Central Prisoners of War Agency), 86
(organization of supervision). Its insertion in Article 9
of the new Conventions, among the general Articles, as well as the wording adopted, give it much greater scope. They mean that ' none ' of the provisions of the Convention exclude humanitarian participation on the part of the International Committee of the Red Cross or another similar organization. That is of particular importance in the case of the Third and Fourth Conventions in which there is a danger that the specific Articles mentioning the International Committee may, because they are so numerous, appear restrictive. In the present Convention, apart from the Article with which we are dealing and Article 3
, which in itself serves as a convention for non-international conflicts, only three Articles refer to intervention by the International Committee of the Red Cross -- namely, Articles 10
(Substitutes for Protecting Powers), 11
(Conciliation Procedure), and 23
(Hospital Zones and Localities). (11)
Thus, all humanitarian activities are covered in theory, and not only those for which express provision is made. They are, however, [p.108] covered subject to certain conditions with regard to the character of the organization undertaking them, their own nature and object and, lastly, the will of the Parties to the conflict.
1. ' Approved organizations '
The humanitarian activities authorized must be undertaken by the International Committee of the Red Cross or by any other ' impartial humanitarian ' organization. The International Committee is mentioned in two capacities -- firstly on its own account, by reason of its special character and its earlier initiatives, which it is asked to renew should occasion arise, and which it is desired to facilitate; and secondly, as an example of what is meant by an "impartial humanitarian organization". It must be remembered that the International Committee of the Cross is today, as it was when it was founded, simply a private association with its headquarters at Geneva, composed solely of Swiss citizens recruited by co-optation. It is therefore neutral by definition and is independent of any Government and of any political party. Being the founder body of the Red Cross and the promoter of all the Geneva Conventions since 1864, it is by its tradition and organization better qualified than any other body to help effectively in safeguarding the principles of which the Conventions are the expression.
It is necessary for the organization to be ' humanitarian; ' in other words it must be concerned with the condition of man, considered solely as a human being without regard to the value which he represents as a military, political, professional or other unit. And the organization must be ' impartial '. Article 9 does not require it to be international. As the delegate representing the United States at the Conference remarked, it would have been regrettable if welfare organizations of a non-international character had been prevented from carrying out their activities in time of war (12). The International Committee of the Red Cross is not itself international so far as its membership is concerned. In its action, however, it is international, whence its name. Nor does the Convention require the organization to be neutral.
[p.109] 2. ' Activities authorized '
It is not enough that the organization which offers its services should be humanitarian and impartial. Its activities are subject to certain conditions.
They too must be purely humanitarian in character; that is to say they must be concerned with human beings as such, and must not be affected by any political or military consideration. The whole Convention is designed to facilitate the implementation of the principle contained in Article 12
. Consequently, any subsidiary activity which helps to achieve this, and only this, is not only authorized but desirable under Article 9. Such activities may consist of:
1. Representations, interventions, suggestions and practical measures
affecting the ' protection ' accorded under the Convention;
2. The sending of medical personnel and other staff, and also equipment;
3. The sending and distribution of relief (foodstuffs, clothing and
medicaments), in short, anything which can contribute to the humane
treatment and care provided for under Article 12
It follows directly from the text that the above activities must also be ' impartial '. It should be noted in this connection that impartiality does not necessarily mean mathematical equality; in actual fact it hardly ever does. If a rescuer has only ten dressings to distribute to a hundred wounded the condition of impartiality certainly does not mean that he must divide each dressing into ten equal but unusable fragments, and even less that he must not distribute them for fear of being unfair. It means that he must not allow his choice to be dictated by prejudice or by considerations regarding the person of those to whom he gives or refuses assistance. The condition of impartiality is fulfilled, when the hundred wounded persons are dispersed, if the rescuer gives the dressings to the first ten wounded he is able to reach, irrespective of who they are, or, when he can reach any of them, if he is guided in his choice by the apparent gravity of the wounds, making no distinction between friends, allies and enemies. The ideal would be to be able to base the
distribution of relief entirely on the actual needs.
[p.110] During the Second World War the action of the International Committee of the Red Cross itself, although impartial, was in actual fact very unequal. Should the International Committee have refrained from making its 11,000 visits to camps to which it had access, on the grounds that other camps were closed against it? Of course not. Its impartiality resided in the fact that it had offered its services equally to all the belligerent Powers. In the same way the 450,000 tons of relief sent to prisoner of war camps and distributed under the Committee's auspices were very unequally divided amongst prisoners of different nationalities. The reason in this case was that the International Committee of the Red Cross was not the donor, but merely an intermediary -- the only channel by which the parcels could pass through the blockade. Should it then have refused to transmit parcels which mothers had prepared for their sons, or the generous packages which a certain National Red Cross Society was sending to compatriots captured by the enemy, simply because other
mothers could not send such parcels or because those sent by other National Societies were more meagre? The answer again is no. The action of the International Committee of the Red Cross was impartial in that it was equally available as an intermediary to ' all ' mothers and ' all ' National Societies. But that did not prevent it from drawing the attention of the donor Societies, on several occasions, to inequalities which it had noted or, when whole camps in Germany were hurriedly evacuated to the interior of the country during the last days of the conflict, from obtaining authority to distribute the parcels, whatever their origin or destination, to convoys of prisoners of war who were dying of hunger and cold by the roadside.
Humanitarian activities are not necessarily concerned directly with the provision of protection or relief. They may be of any kind and carried out in any manner, even indirect, compatible with the sovereignty and security of the State concerned.
All these humanitarian activities are subject to one final condition -- the consent of the Parties to the conflict concerned. This condition is obviously a harsh one. But one might almost say that it follows automatically. A belligerent Power can obviously not be obliged to tolerate in its territory activities of any kind by any foreign organization. That would be out of the question. The Powers do not have to give a reason for their refusals. The decision is entirely theirs. But being [p.111] bound to apply the Convention, they alone must bear the responsibility if they refuse help in carrying out their engagements.
The "Parties concerned" must be taken to mean those upon which the possibility of carrying out the action contemplated depends. For example, when consignments of relief are forwarded, it is necessary to obtain the consent not only of the State to which they are being sent, but also of the State from which they come, of the countries through which they pass in transit and, if they have to pass through a blockade, of the Powers which control the blockade.
3. ' Scope of the Article '
It is obvious that the practical scope of Article 9 is infinitely less, in the Convention under consideration, than that of the corresponding Articles in the Third and Fourth Conventions. (13) It is mainly on behalf of prisoners of war and civilians that the International Committee of the Red Cross and other impartial humanitarian organizations can usefully propose carrying out charitable activities. As we have already said, the First Geneva Convention is mainly applied on the battlefield. A wounded or sick person who is picked up or captured by the enemy becomes a prisoner of war. He is protected as such -- subject to Article 12
below -- by the Third Convention, and it is principally under the provisions of the latter that international charitable action may be taken on his behalf.
Nevertheless, the Article in the present Convention has its own practical value. No one can foretell what a future war will consist of, under what conditions it will be waged and to what needs it will give rise. It is therefore right that a door should be left open to any initiative or action, however unforeseeable today, which may help effectively in protecting, caring for and aiding the wounded and sick.
Article 9 is also of considerable value from the legal point of view. For faced with the barbarous realities of war, the law remains realistic and humane. It keeps in mind the object of the Convention -- namely, human life, and peace between man and man, conscious that it is only a means -- and a ridiculously weak one when compared with war -- of attaining this object. Therefore, when all had been settled by legal [p.112] means -- ordinary and extraordinary -- by assigning rights and duties, by obligations laid upon the belligerents and by the mission of the Protecting Powers, a corner was still found for something which no legal text can prescribe, but which is nevertheless one of the most effective means of combating war -- namely charity, or in other words the spirit of peace.
And that is where Article 9 is, finally, of immense symbolic value. Through it the Conventions -- all four Geneva Conventions of 1949 -- are linked to their true origin -- Henry Dunant's gesture on the field of battle. Article 9 is more than a tribute paid to Henry Dunant. It is an invitation to all men of good will to perpetuate his gesture.
* (1) [(1) p.104] See above, on Article 8, page 88;
(2) [(2) p.104] See Article 79 of the 1929 Convention relative
to the treatment of prisoners of war;
(3) [(3) p.104] See above, on Article 8, page 89;
(4) [(1) p.105] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ' (September 1, 1939-June 30, 1947), in three volumes,
Geneva, 1948. Vol. I -- General activities, 767 pages;
Vol. II -- The Central Agency for Prisoners of War, 344
pages; Vol. III -- Relief activities, 583 pages;
(5) [(1) p.106] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ' (September 1, 1939-June 30, 1947), Geneva, 1948,
Vol. I, Part III, Chapters XI and XII;
(6) [(2) p.106] See op. cit., especially Vol. I, Part III,
Chapters XI and XII. See also ' Inter Arma Caritas: ' The
Work of the International Committee of the Red Cross
during the Second World War, Geneva, 1947;
(7) [(3) p.106] See ' Documents sur l'activité du Comité
international de la Croix-Rouge en faveur des civils
détenus dans les camps de concentration en Allemagne
(1939-1945) '. See also ' Inter Arma Caritas, ' Geneva,
1947, Chapter VIII;
(8) [(4) p.106] The description of the persons protected was
adapted to suit each Convention;
(9) [(1) p.107] See ' Final Record of the Diplomatic
Conference of Geneva, 1949, ' Vol. II-B, pages 20-21, 29,
60, 111 and 346;
(10) [(2) p.107] See above, page 104;
(11) [(3) p.107] See below, Article 10, page 112, Article 11,
page 126, and Article 23, page 206. Article 16 (and with
reference to it Article 17) may also be included, since,
without actually naming the International Committee of the
Red Cross, it refers to the work of the Central Prisoners
of War Agency which is, in principle, formed by the
International Committee of the Red Cross;
(12) [(1) p.108] See ' Final Record of the Diplomatic
Conference of Geneva, 1949, ' Vol. II-B, page 60;
(13) [(1) p.111] Third Convention, Article 9; Fourth
Convention, Article 10;